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Showing contexts for: 391 crpc in Mohd. Salauddin vs State & Anr. on 20 March, 2015Matching Fragments
20. Next argument advanced by the learned counsel for the petitioner is that the learned Appellate Court by invoking Section 391 Cr.P.C. committed an error and exceeded its jurisdiction by directing to take further evidence; the learned Appellate Court asked the trial court to examine an officer of this Court to ascertain the fact regarding filing of Writ Petition by the petitioner; record produced by the official of this Court was not the part of charge-sheet nor any investigation on the same was conducted by the investigating authority; provision of Section 391 Cr.P.C. cannot be used as a tool for creating new evidence. In support of this contention, reliance has been placed on judgment in case of Rambhau and Another vs. State of Maharashtra (2001) 4 SCC 759 in which it was observed that a very wide discretion is available in the matter of obtaining additional evidence in terms of Section 391 of Cr.P.C., but this additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused.
21. To deal with this contention of the petitioner, this Court has gone through the provision of Section 391 Cr.P.C. which provides that while dealing with appeal, if the Appellate Court thinks additional evidence is necessary, it shall record its reasons and may either take such evidence itself or direct it to be taken by a Magistrate.
22. Section 386 Cr.P.C. envisages the normal and ordinary manner and method of disposal of an appeal, but it cannot be said to exhaustively enumerate the modes by which alone the Court can deal with an appeal. Section 391 of the Code is an exception to the ordinary rule and if the appellate Court considers additional evidence to be necessary, the provisions in Section 386 and 391 of the Code have to be harmoniously considered to enable the appeal to be considered and disposed of also in the light of the additional evidence as well. For this purpose it is open to the appellate Court to call for further evidence before the appeal is disposed of. The appellate Court can direct the taking up of further evidence in support of the prosecution. The primary object of Section 391 Cr.P.C. is the prevention of guilty man's escape through some careless or ignorant proceedings before a Court or vindication of an innocent person wrongfully accused. Where the court through some carelessness or ignorance has omitted to record the circumstances essential to elucidation of truth, the exercise of powers under Section 391 Cr.P.C. is desirable. Section 391 Cr.P.C. has been enacted for the empowerment of the appellate court to see that justice is done between the prosecutor and the persons prosecuted and if the appellate Court finds that certain evidence is necessary in order to enable it to give a correct and proper findings, it would be justified in taking action under Section 391 Cr.P.C.
23. The Hon'ble Apex Court in Zahira Habibulla H. Sheikh and Anr.
Vs. State of Gujarat and Ors. AIR 2004 SC 346 while dealing with Section 391 Cr.P.C., held as under :
"There is no restriction in the wording of Section 391 either as to the nature of the evidence or that it is to be taken for the prosecution only or that the provisions of the Section are only to be invoked when formal proof for the prosecution is necessary. If the appellate Court thinks that it is necessary in the interest of justice to take additional evidence it shall do so. There is nothing in the provision limiting it to cases where there has been merely some formal defect. The matter is one of the discretion of the appellate Court. As re-iterated supra the ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the public prosecutor is also entitled to justice. The cause of the community deserves equal treatment at the hands of the Court in the discharge of its judicial functions."
24. In view of the above discussion and in view of laid down in case of Zahira Habibulla H. Sheikh (supra), this Court is of the view that the discretion exercise by the learned Additional Sessions Judge to take additional evidence under Section 391 Cr.P.C. cannot be said to be exceeding of jurisdiction. The judgment referred by the petitioner in case of Rambhau (supra) does not render any assistance to him in view of above discussion.